## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Robin son , 2012 IL App (4th) 101048

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. AL FRED D. ROB I

NSON, Def

endant- Appellant.

District & N o. Four th District Docke t No. 4-10-1048

Filed Rehea ringdenied August 27, 2012

September 25, 2012

Held (Note : This syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def ense counsel was not ineffe ctive in reje cting defe ndant’s reque st that counsel ser

ve only as conduit duringplea ne g otiations.

Dec ision Under Review App ea l from the Circuit Court of McL ean County
, No. 07-CF- 194; the Hon. Scott Drazewski, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, of State Appellate Def ender ’s Offic e, of Springf ield, and Alan D. Goldberg and Christopher L

. Gehr ke (ar gued), both of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Wil liam A. Yoder
, State’s Attorney
, of Blooming ton (Patrick De lfino, R o b ert J

. Bide rman, and Denise M. Ambrose (ar gued), all of Sta t e’ s Attorney s Appellate Prose cutor’s O ffice , of counse l), for the People.

Panel J USTI CE STEI GMANN delivere d the judgme nt of the court, with opinion.
J ustice Appleton c oncurr ed in the judg ment and opinion.
J ustice Cook specia lly

concur red, w ith opinion.

OP INION

¶ 1 In this case, we are asked to de termine whe ther de fense counsel is ineffe ctive when he reje cts a defe ndant’s direc tive that counsel serve essentially as mere ly the d efendant’s conduit durin g gu i l t y -pl ea neg otiations. We conclude that he is not, g iven that a criminal defe ndant’s role in guilty -plea neg otiations when he is r epre sented by counsel is limited to

acc epting or reje cting the agree ment for a guilty plea that defe nse counsel and the prosec utor have r eac hed. ¶ 2 I n Fe bruar

y 2007, the State char g ed defe ndant, Alfre d D. Robinso n , wi t h u n l aw fu l possession of a controlled substance (720 I L CS 570/402(a)( 2)(B ) (West 2006)) and unlawful
possess io n o f a c o ntrolled substance with intent to deliver (720 I L CS 570/401(a)( 2)(B ) (West 2006)). In April 2007, the State c h a rg e d d efe ndant with unlawful possession of canna bis (720 I L CS 550/4(b) (West 2006)). Following an August 2007 trial, a jury found defe ndant guilty of all three charg es, and the trial court later sentenc ed him to 12 y ear s in pr ison. D efe ndant
appea led, and this court aff irmed. People v. Robinso n , No

. 4 -0 7-0899 (Mar

. 3, 2009) (unpublished orde r under Supreme Court Rule 23). ¶ 3 In August 2009, defe ndant pro se filed a petition under the Post-Convi ction Hea ring Act (725 I L CS 5/122-1 to 122-8 (West 2008)), complaining
, in pertinent part, that he was denied his constitutional rig ht to the eff ective assistance of counsel when his attorney , Terr y Dodds, failed to communicate to the State his desire to acc ept the State’s guilty -plea o ff er

. Af t er advanc ing de fenda

nt’s petition to the second stag e of postconviction proce eding s, the trial court grante d the State’s motion to dism iss. ¶ 4 Def

endant appea ls, arguing that (1) the trial court err ed by dismiss ing his postconvic tion petition beca

use he was denied the eff ective assistance of trial counsel, g i v en t h at Do dds

-2-failed to communicate his desire to acc ept the State’s guilty -plea offe r, and (2) he should be

aff orded a new hear ing beca

use his postconviction counsel provided unrea sonable assistance by failing to adequately prese nt his pro se postconviction asser tions. We disag ree and aff irm.

¶ 5 I . BA CKGROUND ¶ 6 In Fe bruar

y 2007, defe ndant was trave ling on Interstate 55 in a v eh i cl e driven by his cousin. I llinois State Police Offic er Br andon Smick initiated a traff ic stop afte r observing the vehicle spe edingand swe rving . During the stop, Smi ck discove red a n outstanding w arr ant for defe ndant’s arr est. Shortly there afte r, a canine unit arr ived to assist Smick. After walking around the vehicle, the canine indicated that narc otics we re prese nt. Whil e sear ching the vehicle, the office rs discover ed 249.9 grams of c ocaine and 2.6 grams of c annabis. ¶ 7 The State there afte r charg ed defe ndant with un l aw fu l p o s s es s i o n o f a co n t ro lled substance (720 I L CS 570/402(a)( 2)(B ) (West 2006)) and unlawful possession of a controlled substance with intent to deliver (720 I L CS 570/401(a)( 2)(B ) (West 2006)). At a Marc h 2007
status hear ing, Dodds explained to the trial court that the State had “extended an offe r” and that he re quired a

continuance in order to discuss that off er w ith defenda

nt. ¶ 8 In April 2007, the State char g ed defe ndant with unlawful possession o f ca n nabis (720 I L CS 550/4(b) (West 2006)). A t a status hear ing held shortly there afte r, t he S tate sought a trial date beca u s e it had made “six differ ent offers,” which defendant had reje cted, adding that there wer e “no ong oing ne g otiations.” ¶ 9 At the J uly 23, 2007, status hear ing, the trial court inquired into the status of the par ties’
ong oing guilty -plea

neg otiations, as follows:
“THE COU RT: I s the [S ]t ate pr ocee ding on a ll three c ounts? [P ROSECUTOR] : Yes, sir.
THE COURT: And although it is infere ntially People versus Curry related, can y ou tell me, [prosecutor], if an offe r, without specify ing what the offe r is, if an offe r has been made for a dispositi on other than a conviction upon the most serious offe nse, that being a Class X fe lony

. [P ROSECUTOR] : Previously
, previousl y o n multipl e occa sions, let’s see, five

occa sions there wa s, but there is not one today

. THE COURT: So that’s been w ithdrawn by the [S ]t ate? [P ROSECUTOR] : Correc t.
THE COURT: All ri gh t

. J ust to confirm, this is primarily to g o ahea d and protec t your attorney , that being Mr. Dodds, at a later point in time for being challeng ed by y ou, [defendant], that he didn’t tell you what at this point in time, do I assume that Mr. Dodds has–ar e you awa

re of what the potential penalties are for that, for the most serious of the offe r with intent to deliver?
THE DEF ENDAN T: No.” The court there afte r explained on the rec ord the potential penalties for the cha rge s t hat defe ndant was fac ing. The court then inquired into defe ndant’s desire to proce ed, as follows:

-3-“THE COURT: Okay

. And knowing that, is it still y o u r desire then to proce ed to trial?
THE DEF ENDAN T: No, I have attempted to acc ept the [S ]t ate’ s offe r of eight y ear s, but it has been de clined.
T HE C OURT: Well, appar ently that offe r i sn’t there any more and so I cannot n o r will I g et involved in neg otiations, but basica lly
, at this point in time, if the offe r has been withdrawn– Did you need time to talk with Mr. Dodds a bout that?
THE DEF ENDAN T: Yes.” Followinga brie f re cess, the c olloquy continued as f

ollows:
“THE COURT: L et the rec ord re fl ect, following a rec ess wher e Mr. Dodds and [defendant] had an opportunity to confe r privately in an adjoining confe renc e room, that *** defe ndant returns in open court with Mr

. Dodds, [t he prosec utor] being prese nt for the State.
Initially
, Mr. Dodds, what can you advise me, if any thing, with ref

ere n ce to how we’ ll be proce edingtoday ?
MR. DODDS: Your Honor, the [S ]t ate has made a cap offe r during the rec ess, I don’t
want to say what the number was, but [defendant] has declined the cap offe r which I will
state to the court that it was less than the maxi mum of the Class 1, so I can tell the court that it was 15 or less.” ¶ 10 Following an August 2007 trial, a jury found defe ndant guilty of unlawful possession of

a controlled substance, unlawful possession of a controlled substance with intent to deliver, and unlawful possession of canna bis. The trial court later sentenc ed him to 12 y ear s in prison. Shortly there afte r, defe ndant sent a letter to the court explaining that Dodds (1) failed to communicate his June 29, 2007, acc eptanc e of the State’s offe r to rec ommend an eighty ear prison term to the court, (2) failed to explain that the State’s sentenc i n g ca p o ffer applied only if he pleade d guilty , and (3) failed to be “supportive.” The c ourt responde d to defe ndant’s letter, explaining to defe ndant that Dodds would be rec eiving his letter and that he should speak to Dodds a bout filing the a

ppropriate motion. ¶ 11 No furthe r ac tion was taken. ¶ 12 Def

endant appea led, arg

uing that the trial court failed to conduct an adequate inquiry into his alleg ations of ineffe ctive assistance of counsel. This court reje cted defe ndant’s argument, concluding that the court did not err beca use “the court rig htfully relied on its own knowledg e of the negot i at i o n timeline in reje cting defe ndant’s claim of ineffe ctive assistance .” Peopl e v. R o b inson
, No. 4-07-0899 (Mar

. 3, 2009) (unpublished order under Supreme Court Rule 23). ¶ 13 In Au gu s t 2 0 0 9
, d ef en d an t p r o se filed a postconviction petition, complaining , in pertinent part, that he was denied his constitutional rig ht to the eff ective assistance of counsel when Dodds failed to communicate to the St at e h i s desire to acc ept the State’s eig ht-y ear offe r. In his petition, defe ndant asser ted that afte r the State made a guilty -plea offe r of eig ht
y ear s, he asked Dodds to “see if he could g et [seven] y ear s, but if not, then let [t he S t ate]

-4-know that [he would] take the [eight] y ear s.” Def endant further asser

ted that Dodds ref

used, resultingin the State’s withdraw ing its off er. ¶ 14 Def

endant attache d to his petition an aff idavit, which contained the followingasser tions. Dodds informed him about the State’s eig ht-y ear offe r on May 30, 2007. Sometime afte r Dodds told him about the offe r, defe ndant asked Dodds to “ see if [he] could g et it down to [seven] y ear s, and if not, then, [ h e would] take the [eight] y ear s.” Dodds responde d as follows: “I [am] not g oing back to ask for [seven] y ear s.” As a result, defe ndant and Dodds beg an ar guing a

nd defe ndant was “ sent awa y .” ¶ 15 Def

endant also included with his petition a pro se letter that he sent to the prosec utor that

was d at ed J u l y 1, 2007, and file stamped by the State’s Attorney ’s office on J uly 5, 2007. That letter r ead, in pa

rt, as follows:
“I *** am writing to you to say that on [J une 29, 2007,] my attorney [,] *** Dodds[,] ask[ed] you or you offe red 8 y ear s. I know this case is set for trial on [J uly 23, 2007,] but

on [J une 29, 2007,] I ask[ed] *** Dodds to ask you for 7 y ear s and we could have been done with this case the n. His response to me w as [that] he ca n’t do that.” ¶ 16 Def

endant a lso attache d to his petiti on a sig ned letter from Dodds dated J uly 16, 2007. That letter r ead, in pa

rt, as follows:
“I understand that you have written [t he prosec utor] in an attempt to further neg otiate

a plea barg ain for yourself. Due to the nature of the status of these proce eding s, I would
reque st that you discontinue such prac tice, and further reque st that sho u l d y ou have something that you would like to ask the prosec utor that you g o throug h me as your ag ent and attorney

. I have had countless conver sations w ith him about this c ase, and the time for ne g otiation has come a nd g one. I am also writing you to confirm the statu s of these proce eding s. You have been previously advised that the possible sentenc ing rang e of punishment in this case is from 9 to 30 y ear s in the I llinois Depa rtment of Correc tions, provided that you are convicted of the ‘super x ’ count of unlawful possession w ith intent. As I have previously advised
y o u , I am d oubtful you can beat this count, despite weight being the only indicator o f intent to deliver. Whil e I think it is a leg itimate argum en t t h at you did not intend to deliver, due to my experience with McL ean County juries, I am doubtful that they

will believe our

arg ument.
L astly
, just to confirm what I have previously told yo u , even wer e you to beat that
count of unlawful [poss ession] with intent, it is seriously doubtful that the judge will g ive
you a sente nce of

less than 8 y ear s due to the weight a nd reg ardle ss of the fa ct that you

wer e found not-guilty of the more serious offe nse; in other words, it will be a shallow victory

. The judge may believe you intended to deliver t h e narc otics reg ardle ss of convincing the 12 jurors to the contra ry and obtaining a not-guilty verdic t. He would then likely sentenc e y ou to more than the m inimum. Nonet h el es s , I have hopes that we can beat Count I I

. The above n o t wi thstanding, I think that [t he prosec utor] has revoke d his previous offe r of 8 y ea rs at this point. Fr om my discussions with him[ ,] he seeme d extremely
ag itated that you reque sted a 7[-] y ear offe r afte r previously indicating t h at you would

-5-[acce pt] 8 and afte r I had succe ssfully neg otiated your desired sentenc e with him; he has now i nformed me that the offer is ag ain 9, althoug h I have a fe el i ng that he may ag ain come down to 8, should you so desire.” ¶ 17 In Marc h 2010, the trial court advanc ed defe ndant’s postconviction petition to the second stag e of postco n v iction proce eding s and appointed attorney Keith Davis to repr esent defe ndant. I n August 2010, Davis filed a “De clar ation To Stand on Pro Se Pleading s” and

a cer tificate pursuant to I llinois Supreme Court Rule 651(c) (ef f. Apr. 26, 2012), aver

ring that he had consulted with defe ndant, examined the rec ord of proce eding s at trial, and had made
any amendments necessa

ry to adequately prese nt defe ndant’s pro se cla i m s

. I n September 2010, the State filed a

motion to di smiss defendant’ s postconviction petition. ¶ 18 At a Dec ember 2010 hearing on the State’s motion to dismiss
, t h e S t at e ar gu ed, in pertinent part, t h at defe ndant’s claim that Dodds was ineffe ctive beca use he failed to communicate defe ndant’s desire to acc ept the State ’ s e ig ht- ye a r g u il ty -plea offe r beca

use that
argument was barr ed by the doctrine of res judicata
, and, in any event, counsel was eff ective. Def ense counsel Davis responde d that he agree d with the State’s position, but not its rationale

. Davis conclude d, and expressed to the trial court, that defe ndant’s postconviction claims wer e “on shaky footing .” As to defe ndant’s claims of i neff ective as s i s t an ce of t rial counsel, Davis indicated that the “tenor of most of the plea discussions” was that defe ndant “wa s willing to take X -number of y ear s, [and he] was not given that.” ¶ 19 The trial court then dismiss ed defe ndant’s postconviction petition, finding
, in pe rtinent part, a s follows: “[ T ] h ere was kind of a rene wed asser tion as it relates to an alleg ed deprivation o f defe ndant’s constitutional rig hts relating to a plea agree ment or plea deal, and the rec ord *** would indicate that no such agree ment had ever been rea ched betwee n the [S ]t ate and *** defe ndant, there was alway s a condition prec edent, and so there was no meeting of the minds.” ¶ 20 This appea l followed.

¶ 21 I I . ANALYSI S ¶ 22 Def

endant argues that (1) the trial court err ed by dismiss ing his postconviction petition beca use he was denied the eff ective assistance o f t ri al counsel, g iven that Dodds failed to communicate his desire to acc ept the State’s guilty -plea offe r, and (2) he should be aff orded

a new hear ing beca

use his postconviction counsel, Davis, provided unrea sonable assistance by failing to adequately prese nt his pro se postconviction asser tions. We addre ss defe ndant’s contentions in turn.

¶ 23 A. Def endant’ s Claim That the Trial Court Erre d by Dismissi ngHis Postconviction P etition ¶ 24 1. Postconviction Proce edings and the Standard of Revie w ¶ 25 I n P eople v. Andrews
, 403 I ll. App. 3d 654, 658, 936 N.E.2d 648, 652-53 (2010), th i s court outlined postconviction proce eding s under the Post-Convi ct ion Hea ring Act, as

-6-follows:
“A defe ndant may proce ed under the Act by alleg ing that ‘in the proce eding s which resulted in his or her conviction[,] there was a substantial denial of his or her rights under the Constitution of the United States or of the State of I llinois or both.’ 725 I L CS 5/122- 1(a) (1) (West 2006). In noncapital case s, the Act establishes a t h ree-stag e proce ss for adjudicating a postconviction peti t i o n

. 725 I L CS 5/122-1 throug h 122-8 (West 2006); People v. Jones
, 213 I ll. 2d 498, 503, 821 N.E.2d 1093, 1096 (2004). At the first stag e, ‘the trial court, without input f rom the State, examines the petition only to de termine if [i t alleg es] a constitutional deprivation unrebutted by the rec ord, re ndering the petition neither frivolous nor patently without merit.’ (Emphasis in orig inal.) People v. Phyfiher
, 361 I ll. Ap p

. 3 d 8 8 1
, 883, 838 N.E.2d 181, 184 (2005). ‘Section 122-2.1 [of the Act] direc ts that if the defe ndant is sentenc ed to imprisonme n t (r at h er than death) and the circ uit court deter

mines that the petition is frivolous or patently without merit, it shall be dismiss ed in a written order

. 725 I L CS 5/122-2.1(a) (2) (West 2004).’ People v. Torres
, 228 I ll. 2d 382, 394, 888 N.E.2d 91, 99-100 (2008).
I f a petition is not dismiss ed at stag e one, it proce eds to stag e two, wher e section 122- 4 of the Act provides for the appointment of counsel for an indige nt defe n dant who wishes counsel to be appointed. 725 I L CS 5/122-4 (West 2006). At the second stag e, the State has the opportunit y to answe r or move to dismiss the petit ion. 725 I L CS 5/122-5 (West 2006). I f the trial court does not g rant the State’s motion to dismiss or if the State has filed an answe r, the petition proce eds to the third stag e, wher e the defe ndant may prese nt evidence in support of his petition. 725 I L CS 5/ 122-5, 122-6 ( West 2006).” ¶ 26 Her e, the trial court dismissed defe ndant’s postconviction petition following asecondstag e hear ing on the State’s motion to dismiss

. “[T] he dismiss al of a postconviction petition
at the second stag e is war

rante d only when the alleg ations in the petition, liberally construed in light of the trial rec ord, fail to make a substantial show ing of a constitutional violation.” People v. Snow
, 2012 I L App (4th) 110415, ¶ 15, 964 N.E.2d 1139. We revie w de novo the trial court’ s dismis sal of a postc onviction petition at the second stag e. Id.

¶ 27 2. Defendant’ s Contention T

hat the Trial

Court Erred by Dismissing His
Petition BecauseHe W

as Denied theEffectiveAssistance of Trial Counsel ¶ 28 Def

endant contends that the trial court err ed by dismiss ing his postconviction petition at the second stag e of postconviction proce eding s beca use he demonstrated that he was denied the ef fec tive assistance of trial counse l, give n that Dodds failed to communicate his desire
to acc ept the State’s eight-y ear guilty -plea offe r. Specifica lly
, defe ndant asser ts that Dodds

was ineffe ctive b ec au s e he ref used to follow defe ndant’s direc tive to counter the State’s eig ht-y ear offe r with an offe r to plead guilty in exchang e for seven year s, and if the State did
not acc ept that counter offe r, to ac cept the State’ s orig inal eig ht-y ear offe r. We disag ree

.

¶ 29 a. Ineff ective A ssistance of Counsel ¶ 30 Claims of ineffe ctive assistance of counsel are judge d under the familiar s t an d ard set

-7-forth in St r ickland v. W ashington
, 466 U.S. 668 (1984). Under that standard, a defe ndant “must show that counsel’s perf ormanc e fell below an objective standard of rea sonablene ss and that there is a rea sonable probability that, but for counsel’ s u n p rofe ssional err ors, the result of the proce eding would have been differ ent.” People v. Manning
, 241 I ll. 2d 319, 326, 948 N.E.2d 542, 546-47 ( 2011) (c iting Strickland, 466 U.S. at 688, 694). ¶ 31 In this case , defe ndant claims that Dodds’ perf ormanc e fell below an objective standa rd of re as o n ab l eness when Dodds failed to follow defe ndant’s direc tive to communicate his
counter offe r to the State, and if the State reje cted his seven- y ear counter offe r, to acc ept the State’s eigh t -y ear offe r. Def endant’ s position in this reg ard misconstrues the role of a defe ndant in plea ne g otiations.

¶ 32 b. A Def endant’ s Role in Pl ea N eg otiations ¶ 33 In People v. Rainey
, 325 I ll. App. 3d 573, 582, 758 N.E.2d 492, 500 (2001) , this c ourt cited the supreme court decision in People v. Brocksm ith
, 162 I ll. 2d 224, 229, 642 N.E.2d 1230, 1232 (1994), as holding that there are five decisions that a cr i m i n al defe ndant has a rig ht to make persona lly : (1) whether to plead guilty
, (2) whether to waive the rig ht to a trial by jury
, (3 ) wh et h er t o testify
, (4) whether to appea l, and (5) whether to reque st jury instructions on lesser- included def enses. All other de cisions are matters of tria l stra teg y on wh i ch the ultimate decision is left to defe nse counsel’s sound judgme nt. Perhap s as signific ant, howeve r–at least for purposes of this case–is the fac t that eac h of these decisions that is “per sonal” to the defe ndant require s a simple “up or down vote”–that is, they require only a “yes” or “no” answe r. For example, when a defe ndant elec ts to testify
, his role is not to decide what questions his attorney will ask him once he is on the stand; his role is to decide whether

he will g et on the stand at all. See People v . Ramey
, 152 I ll. 2d 41, 54, 604 N.E.2d 275, 281 (1992) (holding that trial counsel has the rig ht to make the ultimate decision with respe ct to matters of tactics and strategy such as whether and how to conduct the examination of witnesses afte r consulting with his client). L ikewise, when a defe ndant elec ts to seek a plea agree ment, his role is not to “hag g le” with the prosec utor by direc ting counsel during the neg otiation proce ss; his role is t o d ec i d e whether to acc ept or reje ct the plea
agree ment that his counsel and the pr osecutor ultimately rea ched. ¶ 34 H a

v in g o utl in e d th e c rim in a l d e f e n d a nt’ s im p ortant–but limit ed–role in plea ne g otiations, we turn to plea

neg otiations ge nera lly

.

¶ 35 c. Plea Ne g otiations Genera lly ¶ 36 Plea neg otiations a re g ener ally

g overne d by

the principles of contra ct law. In 2004, the
supreme court explained that the p l ea -negotiation proce ss itself is akin to contra ct neg otiations, as follows: “Althoug h the application of contra ct law principles to plea agree ments may require ‘temper ing in some instances’ in order t o s at i s fy conce rns for due proce ss, plea
agree ments are nonetheless subject to traditional principles of contra ct law absent such

conce rns. See [ People v. ] Evans
, 174 I l l

. 2d [320,] 326-27[, 673 N.E.2d 244, 247 (1996)] ; People v. Bouie
, 327 I ll. App. 3d 243, 246[, 763 N.E.2d 858, 8 6 0 ] (2 0 0 2 );

-8-Coleman v. United States
, 318 F.3d 754, 759 n

. 1 (7th Cir. 2003); United States v. Mu z i ka
, 9 86 F.2d 1050, 1054 (7th Cir. 1993) (the exis tence of a plea agree ment is deter mined by ordinary contra ct principles of offe r and acc ept ance ). Pursuant to traditional principles of contra ct, the leg al eff ect of a counter offe r is t h e re j ec t i o n of a standing offe r. Sharp Electronics Corp. v. Deutsche Financial Servic es Corp.
, 216 F.3d 388, 395-96 (4th Cir. 2000), citing Restatement (Second) of Contract s § 3 6 (1981). A reje cted offer can not be revived by a later acc eptanc e. S ee Seme nta v. T ylman
, 230 I ll. App. 3d 701, 705[, 595 N.E.2d 688, 692] (1992); D’Agostino v. Bank of Rave nswood
, 205 I ll. App. 3d 898, 902[, 563 N.E.2d 886, 889] (1990); Sharp Electronics Corp.
, 216 F.3d at 396. When a defe ndant re jects a State offe r, the parties g o ‘bac k to the draw ing board.’ Coleman
, 318 F. 3 d at 7 5 9.” People v. Hende rson , 211 I ll. 2d 90, 103-04, 809 N.E.2d 1224, 1232 (2004)

. ¶ 37 Under standing that plea neg otiations are g overne d g ener ally by the principles of contra ct law, we turn to the pl ea neg otiations in this case , keepingin mind that defenda nt contends th at Dodds was ineffe ctive–that is, Dodds’ actions fell below an objective standard of

rea sonablene ss–for failingto follow defe ndant’s dire ctive to first counte r the State’s offe r, and if the State r efuse d, to then acc ept the State’s e ight- y ear offe r.

¶ 38 d. The Plea N eg otiations in This Case ¶ 39 In this case , the State at one point offe red defe ndant, throug h Dodds, the opportunity to plead gu ilty and, in exchang e, the State would rec ommend that the trial court impose a sentenc e of eig ht y ear s in pris o n

. Dodds, as was his duty
, conveyed the State’s offe r to defe ndant, who responde d by direc ting Dodds to “see if he could g et [seven] y ear s, but if not, then let [t he State] know that [he would] take the [eight] y ear s.” Dodds ref used, stating that he was “not g oing ba ck to ask for [seven] y ear s.” Presumably
, Dodds understood that if he
counter ed the State’s eig ht-y ear offe r, the leg al eff ect of that counter offe r (as t he supreme court explained in Hende rson , 211 I ll. 2d at 104, 809 N.E.2d at 1232) would be the reje ction of the S tate’s then-eig ht-y ear offe r. I n other words, Dodds corr ectly identified defendant’ s counter offe r for a seven- y ear deal as a reje ct i o n of the State’s eig ht-y ear offe r. Indeed, defe ndant’s petition and acc ompanying documents s h ow that he and Dodds argued about defe ndant’s directive, i ndicating that defe ndant di d not want to acc ept t he e i gh t -y ea r offe r without first counter ing it with a reque st to plead guilty in exchang e for seven year s in prison. The fac t that defe ndant later indicated his desire to acc ept the State’s eig ht-y ear offe r at the J uly 2007 status hear ing is of no conseque nce; at that point, the offe r was “off the table.” See Brach v. Matteson
, 298 I ll. 387, 392, 131 N.E. 804, 806 (1921) (an offe r “must be acc epted befor e it is withdrawn or it become s inoperative”); Restatement (Second) of Contracts § 36 (1981) (an offe ree ’s power to acc ept may be terminated by
, among other things, revoc ation by the offe ror)

. ¶ 40 As Dodds’ repr esentation was objectively rea sonable, defe ndant’s claim that he made a substantial showing of a constitutional violation beca use he was denied the eff ective assistance of counsel must fail. In so concluding
, we emphasize that underly ing defe ndant’s claim is his conten t i o n t h at he, not his counsel, is entitled to direc t the plea- neg otiation

-9-proce ss with the State. And we emphasize as well our reje ction of that contention, deeming

it wholly incompatible with the teac hing o f t h e S upreme Court of I llinois in Brocksm ith

. Acc ording ly
, we reje ct defen d an t ’s claim that the trial court err ed by denying his postconviction petition on that basis.

¶ 41 B. D efe ndant’s Claim That He Was Not Af forde d Reasonable Assistance of

Postconviction Couns el ¶ 42 Def

endant nex t contends that h e should be afforde d a new hear ing beca use he was not provided rea sonable assistance of postconviction couns el. Def endant asser

ts that Davis provided unrea sonable assistance beca use Davis re p resented to the trial court that defe ndant’s postconviction claim was that defe ndant was willing to plead guilty in exchang e for a cer tain number of year s but that the S t at e d i d n o t offe r that option, when in rea lity
, defe ndant was c laiming that Dodds f ailed to communic ate his a cce ptance of the eight-y ear plea of fer to the State. Ba sed upon the pa rticular c ircumstance s of this case, w e disagree

. ¶ 43 The rig ht to counsel in postconviction proce eding s is wholly statutory

. 725 I L CS 5/ 122-4 (West 2010). Thus, a defe ndant is entitled only to the level o f as s i stance require d by the statute; in this case , a “re asonable ” level of assistance

. People v. Perkins
, 229 I ll. 2d 34, 42, 890 N.E.2d 398, 402 (2007). To assure that a defenda nt rec eive reasona b l e assi stance , the
supreme court has imposed the following specific dut i es upon postconviction counsel in I llinois Supreme Court Rule 651(c) (ef f. Apr. 26, 2012): “counse l must (1) consult with the [defendant] either by mail or i n person to asce rtain the contentions of deprivation of constitutional rights; (2) examine the rec ord of the trial court proce eding s; and (3) make any amendments to the pro se petiti on nece ssary for an adequate prese ntation of the [defendant’ s] contentions.” Perkins , 229 I ll. 2d at 42, 890 N.E.2d at 403. ¶ 44 Her e, Davis filed a cer tificate, cer

tifying that he complied with Rule 651(c)

. Def endant claims, howeve r, that Davis never theless failed to adequately prese nt his postconviction contention related t o p l ea neg otiations to the trial court. Our revie w of the rec ord ref utes defe ndant’s claim in this reg ard in that the court’s finding s at the second- stag e hear ing show that the court clea

rly understood defe ndant’s postconviction contention–namely
, that Dodds failed to communic ate his acce p t an ce of the S tate’s eight- year guilty -plea offe r. However, the court found that the parties had failed to rea ch an agree ment beca use “ther e was alway s

a condition pr ece dent.” That “condition prec edent,” as the court put it, was that Dodds had to first ask for the seven year s befor e def endant would a cce pt the eig ht-y ear offe r fr om the State. ¶ 45 The rec ord aff irmatively shows that defe ndant’s postconviction claims wer e adequately
prese nted to the trial court, and that t h e court understood and corr ectly ruled upon those claims. We understand defe ndant’s conce rns about his postconviction counsel and agree that counsel should have b ee n a more vigor ous advoca te on defe ndant’s behalf at the secondstag e hearing on t h e S t ate’ s motion to dismiss defe ndant’s postconviction petition. Nonethele ss, on this rec ord, we reje ct defe ndant’s contention that he should be aff orded a new he aring

.

-10-¶ 46 I I I . CONCLUSI ON

¶ 47 For the rea sons stated, we aff irm the trial court’s judgme nt. As part of our judgme nt, w e

awa rd the State its $75 statutory assessment as c osts of this appeal.

¶ 48 Affir

med.

¶ 49 J USTI CE COOK, specia lly concur ring

. ¶ 50 I concur in the decision to aff irm the trial court’s dismiss al of defe ndant’s postconviction petition. I disag ree , howeve r, with the sug g estion that defe ndant’s only role during the pleaneg otiation proce ss is to decide whether to acc ept or reje ct the plea agreement that his counsel and the prosec utor ultimately rea ched. An attorney has a duty to keep his or her client informed of all developments in the case and the attorney ’s progress in prepa ring the defe nse. “[A]part from the five decisions that ultimately belong to a defe ndant in a criminal

case , trial counsel has the ri gh t t o make the ultimate decision with respe ct to matters of tactics and strategy after consultation with the client .” (Emphasis added. ) P eople v. Clendenin
, 238 I ll. 2 d 302, 320, 939 N.E.2d 310, 321 (2010). Clendenin dealt with a stipulation to the admission of evidenc e which was not t antamount to a guilty plea. Clendenin held that defe nse counsel may validly waive a defe ndant’s confr ontation rig ht by
agree ing to such a stipulation “as long as the stipulation is part of counsel’s trial tactics and strategy , and the defendant does not object .” (Emphasis added.) Clendenin
, 238 I ll. 2d at 320, 939 N.E.2d at 321. Def

endant is not “entitled to direc t the plea- neg otiation proce ss with the State” (supra ¶ 40), but def endant doe s have some sa y in the matter.

-11-